Ayodhya more important than polygamy, Supreme Court told

New Delhi: Amidst ruckus created by senior advocate Rajeev Dhavan on whether the “Ayodhya dispute” is less important than “polygamy”, the Supreme Court on Friday agreed to examine whether the entire Ayodhya title dispute can be sent to the Constitution Bench.

A three-judge bench, headed by Chief Justice Dipak Misra, also made it clear to Mr Dhavan that it will decide whether to send the matter to the larger bench only after hearing all parties to the litigation.

“We will not restrict the scope of arguments only to reconsideration of 1994 verdict. You (Dhavan) can argue for referring the entire title suit to a constitution bench,” the bench told Mr Dhavan. Justices Ashok Bhushan and Abdul Nazeer are the other judges in the bench.  

At the outset, Mr Dhavan, appearing for main petitioner M. Siddiq, referred to a recent order passed for referring “polygamy” issue to a Constitution Bench of five judges and asked the court whether Ayodhya dispute is less important than polygamy for not referring to five judges.  

“People of India want to know whether polygamy is more important than Ayodhya dispute. This court must answer now. Ayodhya case is not being dealt with the importance it deserves,” Mr Dhavan told the court. He repeatedly said and urged the CJI to refer this matter to a constitution bench now itself.

Senior counsels K. Parasaran and C.S. Vaidyanathan strongly opposed the words used by Mr Dhavan, insinuating senior lawyers present in the court and Mr Soli Sorabjee, who is not present.

Objecting to Mr Dhavan’s submissions, Mr Parasran told the court, “What sort of argument is this? Nation wants to know and Supreme Court must answer. You (Mr Dhavan) are not alone who is representing the nation. We (petitioners representing Hindus) are also representing the nation. When one is asking for a reconsideration of the 1994 verdict it has to be examined. As far as we are concerned, the verdict did not require reconsideration. Further no review can be permitted after 25 years.”

Mr Parasaran added that it was not proper to compare “polygamy” case with Ayodhya dispute. Last year when triple talaq was decided by the Constitution bench, this issue was left open and for this reason only polygamy was referred to five judges. But here we are dealing with a case, which is already decided, and he is seeking reconsideration.

Additional solicitors general Maninder Singh and Tushar Mehta also objected to Mr Dhavan using unparliamentary and disparaging remarks against senior lawyers and urged the court not to allow the counsel to do so.     

When Mr Dhavan said he cannot argue the same issue now and repeat the same before the Constitution Bench later, Justice Ashok Bhushan reminded the counsel that there is some procedure in this court which must be followed. He asked the counsel “how can you say that I will not argue before you and I will argue only before the Constitution bench before we decide whether reference is required or not.”  

CJI told Mr. Dhavan “whether to refer to a larger bench or not we have to hear all parties and decide. We will hear on all aspects, first, we will put this controversy (on 1994 verdict) to rest. We may take a decision to refer the entire 1994 judgment to a larger bench as well as the title dispute itself.”  

Mr. Dhavan asked the CJI “If the court has one criteria, viz importance of an issue to be referred to the constitution, why not same criteria for this (Ayodhya) issue. This (Ayodhya) is the most important issue facing the Indian secularism, than polygamy. I am asking this with serious anguish. Tell whether polygamy or secularism is important. Let this court openly say that this matter is not sufficiently important than polygamy.

Mr. Dhavan’s objection was that during the last hearing the apex court had said that before deciding the Ayodhya title dispute, it will examine as a 'preliminary issue’ whether the 1994 ruling, viz “a mosque is not an essential part of the practice of the religion of Islam and Namaz. (Prayer) by Muslims can be offered anywhere, even in open” requires to be revisited by a five judge Constitution bench.

The CJI had then made it clear to Mr. Dhavan “if we agree with your propositions, we will refer the legal principles to be considered afresh by a five judge bench. If we don’t agree with your argument and come to the conclusion that the 1994 observations were made in the context of acquisition of land in Ayodhya, we may not refer it.”

On Firday Mr. Dhavan pointed out that the 1994 verdict ordering 'status quo’ on installation of Ram Idol in the disputed site, recognised Hindus right to worship at that place but completely ignored the rights of Muslims to offer namaz in the Babri Masjid. The observation that a mosque is not an essential part of the practice of the religion of Islam and Namaz. (Prayer) by Muslims can be offered anywhere, even in open, required to be revisited as the Allahabad High Court while deciding the title suit in 2010 had apportioned one third of the land to Hindus, one third to Muslims and one third to Ram Lulla relying on the status quo order of 1994. He will continue his arguments on April 27.